Alex has a ten-year-old cassette of a favorite movie. Unfortunately, she does not have a video cassette player. She wants to copy the movie onto her iPod. To do this, she borrows a VCR from a friend, runs a cable to a video capture port on my computer, reformats the file into something the iPod can read, and sends the file to the iPod, which she will use to watch the movie in the future. After the file is securely on the iPod, she will delete all records of the movie from my computer. Destroy the original VHS copy seems wasteful to her, but if the law demands it, she is willing to do so, though she would prefer to simply box it up next with her 8 track tapes, laser disks, and 5 1⁄4 inch floppy disks-none of which she will use again. In the beginning, she had one copy of the movie on a VHS. In the end, she has one usable copy on an iPod. Who would deny that her use is fair? Should the essential fairness of her use hinge in any way on whether the movie has been released on DVD or is available as a download?
Wendy J. Gordon, Draft of Fair Use and Face-to-Face Bargaining (Jun. 22, 2007) (unpublished manuscript).